نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
Note 1, Article 1 of The Law on the Requirement to Register Real Estate Transactions foresees the possibility of prohibiting the transferee from performing legal acts under three specific conditions, and in the event of a breach of contract by the transferee, it must be examined whether the transferee has foreseen the right of termination in the disputed transaction or not; if the right of termination has been foreseen, then this transfer is deemed to be lost, and if the right of termination is foreseen, the property in question is recovered to the first transferor (holder of the right of termination). This bold innovation of the Iranian legislator has created ambiguities in the mind as to what is the nature of including or not including the right of termination in the transaction, that in the first assumption the transfer is deemed to be lost, and in the second assumption the transfer is not valid and the property in question can be recovered? And what will happen to the disputed transaction in the second assumption? And has the legislator repealed the “decision as a unify judicial procedure of the Supreme Court General Board No. 811” in the first assumption? In the second assumption, several cases can be considered; first, the transferor obliges the transferee to terminate, second, the conflicting transaction is assumed to be considered, third, the termination of the main contract terminates the conflicting contract, and fourth, the conflicting transaction cannot be relied upon against the transferor. Of these four methods, only the first method has a legal obstacle, and the other three methods can be applied. And in the first assumption, the legislator, in line with the application of the rule of good faith in contracts and in accordance with the “decision as a unify judicial procedure of the Supreme Court General Board”, considers the transfer to be a waste in law. In the two assumptions of inclusion and non-inclusion of the right of termination for the transferee in the disputed transaction and in the assumption of no termination and non- revocation and non-recovery of the object of the transaction to the transferee's ownership; the recovery of the object of the transaction depends on the good faith of the third party (the third party's ignorance of the inclusion of the three conditions in the basic contract).
کلیدواژهها English